Harry Potter and the Copyright Lawyer
Use of Popular Characters Puts 'Fan Fiction' Writers in Gray Area

SAN FRANCISCO -- While J.K. Rowling was finishing up her latest Harry Potter
sequel these past three years, so was Christina Teresa.

From her third-story apartment here, Teresa typed out a 250-page novella that
she posted on the World Wide Web. In the world she created, the dreaded Professor
Severus Snape -- the greasy-haired, big-nosed misfit who is Harry's nemesis
-- turns out to actually be a good guy trying to infiltrate the evil forces
that threaten the wizarding world. The story, posted on Sugarquill.net, was
an instant hit, attracting thousands of readers from around the world.

As fans await the June 21 release of Rowling's fifth novel about the magical
boy with the trademark lightning scar on his forehead, they can find tens of
thousands of stories online about what the boy wizard is up to next.

In the past few years, a curious literary genre known as "fan fiction"
has been flourishing. The term refers to all manner of vignettes, short stories
and novels based on the universes described in popular books, TV shows and movies.
Similarly derived works are appearing in music, where fans are using their computers
to mix songs from popular artists into new works that they call "mashups."
Movie fans are taking digital copies of films such as the "Star Wars"
epics and creating alternate endings or deleting characters such as the much-maligned
Jar Jar Binks.

The explosion of these part-original, part-borrowed works has set authors of
fan fiction against some media companies in a battle to redefine the line between
consumers' right to "fair use" and copyright holders' rights to control
their intellectual property.

"We don't grow up hearing stories around the campfire anymore about cultural
figures. Instead we get them from books, TV or movies, so the characters that
today provide us a common language are corporate creatures," said Rebecca
Tushnet, an assistant professor of law at New York University who has written
extensively on intellectual property.

Fan-fiction creators say their work represents the emergence of an art form
that takes advantage of all that the Internet was built for. They invoke the
First Amendment and say that under fair-use laws they have a right to create
what they want as long as they are not trying to profit at the expense of the
original material. But some book, music and movie houses argue that fan fiction
is more plagiarism than high art and have demanded that operators of Web sites
remove the offending material.

Rowling has unofficially sanctioned some fan-fiction sites by leaving them
alone. To many of those that feature adult material, however, her agents have
sent sharply worded cease-and-desist letters.

The author is "flattered by genuine fan fiction," said Neil Blair,
an attorney for the Christopher Little Literary Agency, which represents Rowling.
But she has been alarmed by "pornographic or sexually explicit material
clearly not meant for kids."

Christopher Little began sending out letters last year because it feared "the
dangers of, say 7-year-olds, stumbling on the material as they searched for
genuine [Harry Potter] material," Blair said in an e-mail response to questions.

Vicki Dolenga, 31, writes for RestrictedSection.org, which features about 1,200
stories, many of which involve Harry Potter characters engaging in sexual relations
or violence. She said some media companies' aggressive actions against selected
sites is stifling the creativity of writers who want to explore more mature
themes.

In part as a response to publishers' legal entreaties, one Web site, FanFiction.net,
removed all NC-17 stories, including Dolenga's. So in the fall of 2002, she
and some friends founded RestrictedSection.org as an outlet for their work.
The cease-and-desist letters followed. Dolenga said the group has hired a lawyer
and is not taking any stories down.

"My opinion is that if we aren't making any money off of it, it shouldn't
be any of their business," Dolenga said.

Fan fiction has existed for decades but primarily as a fringe hobby among friends
who passed along typed or handwritten manuscripts to one another. But thanks
to the ubiquity of the Internet, it has jumped into the popular consciousness
with a following so large that it is now a topic of graduate theses and writing
contests and a significant marketing outlet for media corporations. One of the
largest collections of fan fiction is built on Harry Potter. On FanFiction.net
alone, the granddaddy of fan-fiction sites, there are some 75,000 stories about
the character.

One well-read story goes back in time to recount how Harry Potter's parents
died while trying to save him. Another tells the same tale as in the first books
but from the perspective of Hermione Granger, one of Harry's two best friends,
who recounts her adventures to her talking diary. Some of the stories imitate
Rowling's style so well that readers say they were confused about which facts
they read in her books and which they read online. Others purposefully break
from Rowling's world, spinning out characters who take drugs, become killers
or engage in sexually explicit acts.

Among the most popular sites is Sugarquill.net. It prides itself on its selectivity
and takes only those submissions that it believes match the tone and spirit
of Rowling's first four novels. Sugarquill, founded two years ago by Jennie
Levine and Megan Morrison, two friends from Baltimore, now hosts more than 500
writers and artists who have created 1,300 stories and 650 illustrations, cartoons
and other pieces of art. The site was named after a candy that appears in Rowling's
novels. (In book three, Harry's friend Ron Weasley says, "Really excellent
sugar quills, which you can suck in class and just look like you're thinking
what to write next.") The site is run by volunteers and funded by the women's
savings.

Levine, 30, a librarian at the University of Maryland at College Park, and
Morrison, 27, an instructional assistant in Howard County, see their site as
a sort of school for aspiring authors. They say writing fan fiction is not all
that different from a school assignment requiring one to craft a missing chapter
of Homer's "Odyssey" or an alternate ending to Jane Austen's "Pride
and Prejudice."

All works that appear on the site are screened and edited for content, logic,
grammar and other things by "professor" volunteers; only about half
the submissions are accepted. The site has forums where people can discuss plot
points, character creation and other story-development issues. Every story has
a feedback link where anyone can offer praise or criticism.

"If you start writing fiction you have to invent everything -- the universe,
the characters, the setting. With fan fiction it's all there for you. . . .
We see the ultimate goal for everyone is to be able to write their own original
fiction, but this is sort of a way for people to get started and build up their
confidence," Levine said.

Teresa was among the first writers who joined Sugarquill. The thirtysomething
history student at San Francisco State University stumbled on the site two years
ago after she read the books and typed "Harry Potter" into an Internet
search engine to find out more. Teresa, who had written as a hobby for many
years but had yet to be published, decided she would give fan fiction a try
and explore what interested her most about the books -- the adults, especially
the witches and wizards who teach at Hogwart's Academy, Harry's school.

Good Potter writers walk a fine line. They must be creative, yet they must
be masters of the "canon," Rowling's first four novels. Teresa's hard-bound
copies of the Harry Potter books, for instance, are filled with yellow Post-it
stickies marking important facts.

She says she loves writing fan fiction because of the collaborative nature
of writing for the Web and the instant feedback. "You have an automatic
fan base," she said. She frequently e-mails paragraphs back and forth to
her friends on the site and takes seriously the comments from the more than
200 people who have posted remarks about her work.

Teresa said she would love for someone to publish her fan fiction one day,
but she's not sure that's realistic given the legal quagmires surrounding the
genre.

The law remains blurry about what's acceptable, said Wendy Seltzer, a staff
lawyer at the Electronic Frontier Foundation and a fellow at the Berkman Center
for Internet and Society at Harvard University. Copyright law protects "derivative
works," but it's not clear whether the use of names or characters or histories
fall into that category. On the other hand, the law also protects people's fair
use of material from copyrighted books for such things as newspaper articles
and criticism. The ambiguity also raises a slew of questions about who owns
the fan fiction, about what might happen if, say, the author of the original
piece lifted material from fan fiction or if fan-fiction writers take from other
fan-fiction writers.

Recently, a group of prominent Internet law and intellectual-property experts
has been trying to find a way to bridge the desires of those who want to build
on others' creative works and the people who own those works. They launched
Creative Commons, a nonprofit organization based at the Stanford Law School
Center for Internet and Society. The organization has created a repository of
works that people can borrow from and has drafted a set of licenses intended
to allow people to share their works while still protecting their ownership.

"If you're a creator you can easily distribute that stuff online, but
the power of the Internet that still needs to be realized is reusing other people's
stuff. The barrier is the legal obstacles," said Hal Abelson, a professor
of computer science at the Massachusetts Institute of Technology and a founder
of Creative Commons. In the six months the organization has existed, artists
have used its licenses to share roughly 250,000 works, mostly writings.

Teresa is in the middle of another long piece, this time something funny and
light about Snape's new wife's conflict with Lucius Malfoy, a notoriously mean
wizard and the father of Harry Potter's arch rival, Draco Malfoy. She hopes
to finish the rest this summer. As always, before she posts a new installment
she will make sure to put a little "c" with a circle at the top, staking
a claim to a copyright. But, she acknowledges, she's not sure what would happen
if she got an offer to sell her stories. Does she in fact own the stories she
wrote -- or does J.K. Rowling?